Citation Nr: 1038639 Decision Date: 10/14/10 Archive Date: 10/22/10 DOCKET NO. 95-16 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a rating in excess of 10 percent for the Veteran's service-connected chondromalacia of the right knee. 2. Entitlement to a rating in excess of 10 percent for the Veteran's service-connected chondromalacia of the left knee. 3. Entitlement to a rating in excess of 10 percent for the Veteran's service-connected laxity of the left knee. ATTORNEY FOR THE BOARD B. Diliberto, Associate Counsel INTRODUCTION The Veteran had active service from October 1978 to April 1980. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Francisco, California, that denied the benefit sought on appeal. The Veteran appealed that decision and the case was referred to the Board for appellate review. The Board notes that on several occasions the Veteran has requested a hearing before the Board. However, on each occasions the Veteran subsequently withdrew his requests and indicated that he no longer wished to attend a hearing. Accordingly, the Board has deemed the Veteran's hearing request withdrawn. 38 C.F.R. § 20.704(e) (2009). The Board also notes that after the Veteran initiated his appeal, in an August 1993 rating decision, the RO granted entitlement to a 10 percent rating for each knee. In addition, an August 2006 rating decision granted entitlement to a separate compensable rating for left knee laxity. However, because these increases in the evaluation of the Veteran's knee disabilities do not represent the maximum rating available for those conditions, the Veteran's claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). Finally, the Board also notes that it previously remanded the Veteran's claim in both September 2003 and October 2008. On both occasions the Board remanded the claim in order to ensure compliance with the duty to notify and the duty to assist. The requested development has been completed to the extent possible and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's service-connected right knee disability is not manifested by leg flexion limited to 60 degrees, leg extension limited to 5 degrees, or any objective evidence of subluxation or lateral instability. 2. The Veteran's service-connected left knee disability is not manifested by leg flexion limited to 60 degrees, leg extension limited to 5 degrees. 3. The Veteran's service-connected left knee laxity is not manifested by more than slight lateral instability. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 10 percent for right knee chondromalacia have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.20, 4.27, 4.40-4.46, 4.71a, Diagnostic Codes 5003, 5256-5262 (2009). 2. The criteria for a disability evaluation in excess of 10 percent for left knee chondromalacia have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.20, 4.27, 4.40-4.46, 4.71a, Diagnostic Codes 5003, 5256-5262 (2009). 3. The criteria for a disability evaluation in excess of 10 percent for left knee laxity have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.20, 4.27, 4.40-4.46, 4.71a, Diagnostic Code 5257 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before addressing the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The notification obligation in this case was met by way of letters from the RO to the Veteran dated June 2003, March 2004, March 2006, January 2009, June 2009 and May 2010. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances of this case. In addition, the Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal and has not argued that any errors or deficiencies in the accomplishment of the duty to notify or the duty to assist have prejudiced the Veteran in the adjudication of his appeal. The Board does note that the Veteran's most recent VA examination was in April 2004, more than six years ago. However, the Board has remanded the Veteran's claim, in part in order to afford him a contemporaneous and comprehensive examination. Numerous attempts were made to schedule the Veteran for a VA examination, but the Veteran failed to report. No further development is required to comply with the provisions of the VCAA or the implementing regulations. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Accordingly, the Board will address the merits of the Veteran's claim. The Veteran has claimed entitlement to ratings in excess of 10 percent for each leg for bilateral chondromalacia. Essentially, the Veteran contends that the current evaluations assigned for this condition do not accurately reflect its severity. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected condition adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155, 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ranges. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinksi, 1 Vet. App. 589 (1991). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required by that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Although the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all findings specified. 38 C.F.R. § 4.21. The Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2008). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. It is possible for a veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal strength, speed coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesion, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidence by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2009). In addition, in evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement and weakness. 38 C.F.R. §§ 4.44, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the diagnostic code provisions governing limitation of motion should be considered. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran first claimed entitlement to service connection for bilateral knee problems in April 1980, shortly after being released from active service. A June 1980 rating decision granted entitlement to service connection for bilateral chondromalacia and assigned a noncompensable rating for each knee effective from April 5, 1980, the day after the Veteran's release from active service. From May 1981 to August 1985 the RO issued numerous additional rating decisions, each one continuing the noncompensable ratings. In November 1990 the Veteran again filed a claim requesting compensable ratings for his service-connected bilateral chondromalacia. An April 1992 rating decision continued to deny entitlement to compensable ratings. The Veteran submitted a Notice of Disagreement (NOD) in August 1992. The RO issued a Statement of the Case (SOC) in January 1993, and the Veteran filed a Substantive Appeal (VA Form 9) later that month. In an August 1993 rating decision the RO granted entitlement to a 10 percent rating for each knee, with an effective date of November 28, 1990. The Veteran's claim first came before the Board in November 2003, at which time the Board remanded the claim for further development. In August 2006 the RO issued an additional rating decision granting entitlement to a separate 10 percent rating for left knee laxity. In an accompanying Supplemental Statement of the Case (SSOC) the RO continued the dual 10 percent ratings for the Veteran's service-connected chondromalacia. The claim came before the Board again in October 2008, at which time it was again remanded for further development. All requested development has been completed to the extent possible and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran's service-connected right and left knee disorders, characterized as chondromalacia, have each been variously rated as 10 percent disabling under Diagnostic Code 5299-5261. The Veteran's specific diagnoses are not listed in the Rating Schedule. Therefore, the RO assigned Diagnostic Code 5299 pursuant to 38 C.F.R. § 4.27 (2009), which provides that unlisted disabilities requiring rating by analogy will be coded first by the numbers of the most closely related body part and "99." See 38 C.F.R. § 4.20 (2009). The RO determined that the most closely analogous Diagnostic Code was 5261, for limitation of motion. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2008). The applicable rating criteria includes Diagnostic Code 5257. Under this code provision, a 10 percent disability rating is warranted where there is slight recurrent subluxation or lateral instability of the knee, and a 20 percent disability rating is warranted where the recurrent subluxation or lateral instability of the knee is moderate. The maximum 30 percent disability rating is warranted where there is severe recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71(a), Diagnostic Code 5257 (2009). Under Diagnostic Code 5257, the provisions of 38 C.F.R. § 4.40 and 4.45 pertaining to painful motion and functional loss due to pain are not applicable because Diagnostic Code 5257 is not predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Diagnostic Codes 5260 and 5261 evaluate knee disabilities based on limitation of motion. Diagnostic Code 5260 is used to evaluate knee disability based upon limitation of flexion of the knee. It provides for a noncompensable rating where flexion is limited to 60 degrees or less, a 10 percent rating when flexion is limited to 45 degrees or less, a 20 percent rating where flexion is limited to 30 degrees or less and 30 percent rating where flexion is limited to 15 degrees or less. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2009). Diagnostic Code 5261 is used to evaluate knee disabilities based upon limitation of extension of the knee, and provides for a noncompensable rating for extension limited to 5 degrees or less, a 10 percent rating for extension limited to 10 degrees or less, a 20 percent rating for extension limited to 15 degrees or less, a 30 percent rating for extension limited to 20 degrees or less, a 40 percent rating for extension limited to 30 degrees or less and a 50 percent rating for extension limited to 45 degrees or less. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2009). Normal range of motion of the knee is from zero to 140 degree of extension to flexion. 38 C.F.R. § 4.71a, Plate II (2009). Under Diagnostic Code 5003, arthritis established by x-ray findings is rated on the basis of limitation of motion of the affected joint. When however, the limited motion of the specific joint or joints involved would be noncompensable under the appropriate diagnostic codes, a 10 percent rating is assigned for each involved major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, however, arthritis is rated as 10 percent disabling when shown by x-ray evidence of the involvement of two or more major joint or two or more minor joint groups, or as 20 percent disabling when shown by x-ray evidence of the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2009). Additional rating criteria are found under Diagnostic Code 5256 (ankylosis of the knee), 5258 (dislocated semilunar cartilage) and 5262 (impairment of the tibia and fibula). VA's General Counsel has provided guidance concerning increased rating claims for knee disabilities. See VAOPGCPREC 23-97 (1997); 62 Fed. Reg. 63,604 (1997). In VAOPGCPREC 23-97, it was held that a veteran who has arthritis and instability of the knee might be rated separately under Diagnostic Codes 5003 and 5257, provided that any separate rating must be based upon additional disability. When a knee disability is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 in order to obtain a separate rating for arthritis. Of course, a separate rating must be based upon additional disability. In VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56,704 (1998), the VA General Counsel clarified that when a veteran has a knee disability evaluated under Diagnostic Code 5257, to warrant a separate rating for arthritis based on x-ray findings, the limitation of motion need not be compensable under Diagnostic Code 5260 or Diagnostic Code 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating. A separate rating for arthritis could also be based on x-ray findings and painful motion under 38 C.F.R. § 4.59. In addition, the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 must be considered in assigning an evaluation for degenerative or traumatic arthritis under Diagnostic Code 5003 or Diagnostic Code 5010. Rating personnel must consider functional loss and clearly explain the impact of pain upon the disability. Further, if a musculoskeletal disability is rated under a specific diagnostic code that does not involve limitation of motion and another diagnostic code based on limitation of motion may be applicable, the latter diagnostic code must be considered in light of sections 4.40, 4.45 and 4.59. Finally, separate evaluations under Diagnostic Code 5260 (limitation of flexion) and Diagnostic Code 5261 (limitation of extension) for disability of the same joint may be assigned. See VAOPGCPREC 9-2004 (Sept. 17, 2004). The period on appeal dates back to November 28, 1990, the date that the Veteran filed his claim for increased ratings. The relevant evidence of record for that period includes VA treatment records, private treatment records, VA examination reports and written statements from the Veteran. In October 1991 the Veteran was afforded a VA examination for his lower extremities. During that examination the Veteran stated that he first began to have pain in his knees in 1979, while in service. He reported that since that time he has had recurrent knee swelling and pain, that his knee condition had become gradually worse and that he was currently unable to walk. Range of motion studies indicated flexion to 130 degrees bilaterally and extension to negative 5 degrees with hyperextensibility bilaterally. Some slight clicking and barely palpable crepitance was noted. No laxity in the medial/lateral nor posterior/anterior dimensions was shown on either side. Torsion caused pain, more on external rotation, but also on internal rotation. Motor strength was 5/5 in all groups of the lower extremities and the calves were symmetric. The examiner stated that it was difficult to make a clinical assessment as the Veteran was an unreliable historian. Additional records indicate that x-rays showed a possible minor effusion on the right knee, but none on the left. Additional treatment records from January 1992 indicate that the Veteran reported pain in his legs. Physical findings from that time included tenderness and a mild degree of effusion of both knees. Chondromalacia was diagnosed and pain medication was prescribed. In his January 1993 Substantive Appeal the Veteran stated that he has daily pain in his knee and that his knee conditions should be rated as compensable based on their effect on his everyday functioning. The Veteran was afforded another VA examination in May 1993. Physical evaluation of the knees did not reveal any swelling. The examiner stated that there may have been some loss of quadricep size on the right. The examiner further stated that with range of motion the Veteran moved very cautiously and almost spastically, holding his arms under the quadriceps as if to stabilize his knee. Flexion was to 130 degrees and extension was to 10 degrees. There was no evidence of crepitus in the range of motion and drawer signs were negative. X-rays taken at that time showed mild narrowing of the medial joint compartments bilaterally. Based on this examination a 10 percent rating was assigned for each knee Subsequent VA treatment records from 1996 indicate that the Veteran requested a heavy-duty wheelchair and bilateral knee braces. No other VA treatment records indicate treatment for the Veteran's knee disabilities. The Veteran was scheduled for additional VA examinations in April 1999 and February 2002, but he failed to report for either examination. In April 2004 the Veteran did report for a VA examination. During that examination the Veteran stated that he was having intermittent severe pain with activities such as walking up stairs or standing for ten minutes. He stated that he could walk a flight of stairs at the present time with resultant pain and that he avoids walking more than two blocks on level ground. With regard to the pain in his knee, the Veteran was that it is rather diffuse, but most pronounced in the lateral and medial subpatellar distribution of the knees and the lateral joint lines of both knees. The Veteran further stated that his knee gave way at times, about twice a day. Rheumatoid arthritis was also reported. Physical examination indicated that the Veteran was in no apparent distress, but that he walked with a mildly to moderately antalgic gait. The Veteran was able to squat to 1/3 of a squat, at which point he complained of increasing pain. Range of motion studies revealed full extension bilaterally to zero degrees and flexion to 130 degrees bilaterally. Slight tenderness in the subpatellar distribution and mild laxity of the left knee of the medial collateral ligament was noted. There was 2+ laxity of the lateral collateral ligament of the left knee. Anterior drawer was negative in the left knee and the right knee had no obvious laxity. Subpatellar crepitus in both knees was noted, with the right greater than the left. The examiner's assessment was bilateral knee strains with mild ligamentous laxity of the left knee and bilateral chondromalacia patella. The examiner stated that the Veteran does have flare-ups and that during those times the Veteran needs to avoid ambulation. The examiner stated that during flare-ups the Veteran will have a further 20 percent worsening with regard to range of motion. A radiology report from that time indicated minimal degenerative changes. No VA treatment records subsequent to the April 2004 VA examination indicate any findings regarding the Veteran's knee disabilities. Following the Board's October 2008 remand the Veteran was scheduled for a VA examination in May 2010. The Veteran did not report for this examination and has not provided any reason for his failure to report. Therefore, medical information that would have been relevant for adjudication purposes could not be obtained. The case is accordingly being considered on the existing record. 38 C.F.R. § 3.665. The RO/AMC also obtained the Veteran's Social Security Administration records in accordance with the October 2008 Board remand. These records are consistent with those findings already reported and do not indicate symptoms worse than those indicated in the records laid out above. For the reasons discussed below, the Board finds that the evidence of record does not demonstrate that a disability rating in excess of 10 percent for each knee is warranted. Objective symptomatology, as indicated on all VA examinations, is limited. An evaluation in excess of 10 percent is not warranted based on limitation of motion of either knee, as there has been no evidence presented showing flexion limited to 30 degrees or extension limited to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Even with consideration of DeLuca factors, such as limitation due to pain, flare-ups, or repetitive use, a compensable rating is not warranted for either knee. DeLuca v. Brown, 8 Vet. App. 202 (1995). Under the provisions of 5003 and as further discussed under 38 C.F.R. § 4.59 and VAOPGCPREC 9-98 (1998), painful motion warrants at least the minimum disability rating of 10 percent. However, a higher disability rating is not warranted under either Diagnostic Code 5003 or 5257. Under Diagnostic Code 5257, the evidence must show that the disability is consistent with a moderate impairment for a higher disability rating to be warranted. While the Veteran has reported limitation, he has not provided any information regarding the frequency of such episodes and has not specifically identified any falling incidents or injuries associated with instability of the knees. Accordingly, the preponderance of the evidence is against a finding that the Veteran's right and left knee disorders warrant a rating in excess of 10 percent each. Stability testing was performed during the 2004 VA examination, and as indicate above, the Veteran demonstrated some laxity of the left knee. The Board also notes that the Veteran has already been assigned a separate 10 percent rating for that symptomatology under Diagnostic Code 5257. As indicated above, a 10 percent rating is assigned under that diagnostic code with evidence of slight recurrent subluxation or lateral instability. Finally, the Board notes that consideration of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) is not warranted. That provision provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, a veteran may be awarded a rating higher than that encompassed by the schedular criteria, as demonstrated by evidence showing that the disability at issue causes marked interference with employment, or has in the past or continues to require frequent periods of hospitalization rendering impractical the use of the regular schedular standards. According to 38 C.F.R. § 4.1, "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned therein. What the Veteran has not shown in this case is that his service-connected knee problems have resulted in unusual disability or impairment that rendered the criteria and/or degrees of disability contemplated in the Schedule impractical or inadequate at any time during the current appeal. As the Veteran's knee impairment is adequately contemplated by the rating criteria referral for consideration of an extraschedular ratings is not warranted. There is a preponderance of evidence against the Veteran's claim and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a rating in excess of 10 percent for the Veteran's service-connected chondromalacia of the right knee is denied. Entitlement to a rating in excess of 10 percent for the Veteran's service-connected chondromalacia of the left knee is denied. Entitlement to a rating in excess of 10 percent for the Veteran's service-connected laxity of the left knee is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs